Decided on August 06,1900

RAJAB ALI Respondents


- (1.) This suit relates to an old silted-up tank which has recently been improved at considerable expense by the principal defendants for the benefit of the village at large.
(2.) It appears that before the tank was leased to these defendants it lay practically useless, and the rank grass which grew thereon was taken by the second party defendants for feeding their elephants. Now that the silted-up tank has been improved by the principal defendants, the plaintiffs bring this suit for the purpose of obtaining hkas possession jointly with the lessors, or with the lessees as the Court may direct. Their case is that they are fractional sharers of the land in which this tank is situated. According to their own statement they are owners of a three anna eleven gunda share only, whilst the lessor defendants own more than twelve annas. It has been found by both the Lower Courts that the lessor defendants were in exclusive possession of this silted-up tank, and made use of it for their elephants, the services of which the plaintiffs sometimes obtained. Written statements were filed on behalf of both sets of defendants, in which they denied that the plaintiff had any interest in the land in suit, alleging that it belonged to another taluq They also contended that as there was a great want of drinking water for the tenants of the village, the principal defendants took a settlement of the tank on an annual jama of Rs. 4 and payment of a nazzur or bonus of Rs. 50, that they re- excavated the tank at the expense of Rs. 700, and raised embankments and improved it, and made it fit for the supply of water to the village.
(3.) Munsif found that the tank belonged to the plaintiffs as well as to the lessor defendants. He also found that although it was all along in the exclusive possession of the latter, such possession was with the permission of the plaintiffs. and considering that the lessee defendants had improved it at their own expense, and that the plaintiffs had not raised any objection at the time of the excavation, he made a decree, declaring the plaintiffs right and giving possession through the tenants. The claim for khas possession was accordingly dismissed.;

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